Music industry v. YouTube: very confusing cake-splitting

Here’s another blog post that I didn’t post in due time. And somehow, the situation had changed while it sat on my hard drive.

It’s nice to see that these days, YouTube’s ContentID system is actually telling me what pieces of music it actually found in the video. Here’s an example:

Matched artist and song title. No complaints there.

I don’t have a permission to use the music, so I can acknowledge that the song was actually used in the video. If the video still remains available, I don’t really mind if the credit is given. If they choose to be annoying about this, I’ll see what the hell I can do about it.

But this wasn’t always so. And I don’t think the situation has improved a great deal either — we took a step to the right direction, sure, but I’m not even sure where this is leading.

Some time ago, I posted a fun little video about The Elder Scrolls V: Skyrim. …okay, it was neither fun nor little.

I wanted to do something unusual in the video and actually narrate the video. So, in this interesting video, you not only hear the awesome sound effects, great voice acting, and the beautiful music of this great game, but also my less than underwhelming and very very awkward narration. (Can’t believe I did this video three times and this was the best I could do. Shit. I’m terrible at narrations.)

And something odd happened to it.

Your video, My house in Skyrim. And some leftovers. , may include content that is owned or administered by this entity:
Entity: Music Publishing Rights Collecting Society
Content Type: Musical Composition

This makes me question several things.

First of all, who the heck is “Music Publishing Rights Collecting Society”?

I’m a video gamer. Which, incidentally, is why I made a video about a video game. I’m a software geek. I’m a writer. So, of course, I’m somewhat acquaintated with the ways video game and software industries work, and how literary publishing works.

And I’ve noticed one pretty curious thing about video games, software and literature: You can always tell who is involved with the projects by looking at the covers.

For example, in this instance, the copyrighted content that I did not create was obviously created by the makers of The Elder Scrolls V: Skyrim. Which is to say, Bethesda Softworks LLC, which is part of ZeniMax, Inc. I’m vaguely aware that the music was made by an independent contractor - Jeremy Soule - but I’m guessing that for copyright purposes the soundtrack is considered work for hire, because the copyright wasn’t separately credited as far as I can tell. I’m also aware that the game’s Original Soundtrack album was published by a third party called Directsong.

Easy peasy. I can rattle this out because I’m a gamer and I’m a fan of the works Bethesda puts out. I’m a fan of Soule’s soundtracks in general. If I weren’t fan, I’d find all this stuff out fairly easily.

So who the heck is “Music Publishing Rights Collecting Society”? Who the heck do they represent? If they’re acting on someone else’s behalf, the question is on whose behalf?

And more importantly, what for?

“Musical Composition” is very confusing, by the way. Because this is what I first saw:

The message was in Finnish, and it does talk about “Musical Compositions”. As in, um, musicals.

(Is there a Skyrim musical in the works? Please do tell if this is the case. There’s next to no good fantasy musicals out there. Oh, I can already see the fan-tastic jolly song about getting an arrow in the knee, and a dramatic heartwrenching song about stupid bees and their stupid honey. Nobody remembers that. I do.)

Is this just a case of YouTube interface translation being wonky? Or is this really about a musical?

Here’s the scary thought: I have no way of knowing.

YouTube’s Content ID algorithm matched the audio against some sample of music. You might think that YouTube would then helpfully also tell me which specific work we’re talking about.

I’d have no problem with this if YouTube would simply tell which piece of music we’re talking about. The fact that I can’t even begin to guess if this copyright claim is legitimate or not is a bad start.

And in copyright world, “mighty vague” just doesn’t cut it, people. Copyright is a very exact field. If I create something, I own it. I don’t get to claim that something that kind of sort of reminds me of something I created is mine too.

A simple example: John Cage’s estate doesn’t get to claim that all instances of 4 minutes 33 seconds of silence are their property. But if you try to replicate the artistic expression — to imitate Cage — they are well within their rights to demand compensation descend upon you like a pack of locusts and murder you, I kid you not. If you make a video that coincidentally has no sound, and is 4 minutes 33 seconds in length, they have no copyright claims. But if you make a 12 minutes 12 seconds of perfectly round 0-bits and call it “4′33″: Extended Digital Trance Mix”, that’s clearly a variation of the theme.

We saw something extraordinary happen that illustrated just how bad things are. Bird song was identified as belonging to Rumblefish. When the video maker duly suggested that there may have been some sort of a mix-up with this automatic identification, Rumblefish responded to the query by reviewing the claim and noting that yep, this indeed is their copyrighted work. Bird song. When the geeks shouted “utter bullshit” from the bottom of their lungs, the company said “hey, we’re not geeks, and it’s weekend”.

Look. The music industry demanded that YouTube would do something about the copyright problem. YouTube did something about the copyright problem. They just didn’t implement the right tool to do that, but the music industry is still behaving as if they did.

Content ID, as it was a while ago, was obviously not a serious tool for identifying copyright infringements. It matched stuff against something else and reports a positive. It didn’t tell the user what it found. The report page doesn’t even have an option to question this.

Under certain circumstances, you may dispute this copyright claim. These are:

if the content is mistakenly identified and is actually completely your original creation;

if you believe that your use does not infringe copyright (e.g. it is fair use under US law);

if you are actually licensed by the owner to use this content.

Note the lack of option of “if the content is mistakenly identified and actually belongs to a video game company that will fucking crush your puny record label ass”. I can only complain if the soundtrack belongs entirely to me. If it belongs to someone else, I’m supposed to look the other way.

Fine. I really wish I would be arsed to tell Bethsoft’s legal department that some music collecting society is possibly collecting ad revenue fradulently from game content they created.

Instead, I filed a fair use claim.

The primary purpose of the video is commentary. The video is narrated by me, and the game soundtrack as such is neither particularly usable out of context nor used in extent that would impair the copyright holder’s ability to turn profit from the game in question. Same goes for video track. Also, my research isn’t turning up any proof that “Music Publishing Rights Collecting Society” is representing Bethesda Softworks LLC, the actual copyright holders of the game; I believe Content ID may have made a misidentification.

And the next day, the video was suddenly not marked as infringing.

Fascinating.

So let’s fast forward a couple of months. Now YouTube no longer marks videos as belonging to some companies. It marks them as having some specific song whose rights are handled by some companies.

Okay. I acknowledged the video has copyrighted material, and that the music was indeed identified correctly this time.

Now, the question is this: Should I file a fair use claim anyway?

I don’t think so, because I deliberately added the music on the video. It’s a Halo video that could have been presented just as it was rendered off bungie.net — the music doesn’t really add much to it that could be justified as a necessary fair-use “quotation”. The only thing is that, once again, I have no idea what the heck Kontor, IDOL and Phonofile are. I really hope O’Donnell/Salvatori, Microsoft or Sumthing Else Music Works descend upon their unworthy hides if they do not have the right to collect money from YouTube.

Stuff would be still much clearer if it just displayed whatever names there are in the OST and game packaging. I don’t even have the OST “packaging” - I bought it off iTunes.

But what about the fair use claim for game music in my Skyrim video? Hell yes, I’d file it again, because I didn’t add anything extraneous to the game footage. I stand by my claim. You don’t watch the video to listen to the score — you want to hear me gibbering.

It’s weird that we still have to straddle the thin line of legality here. The music labels are at least now saying what the hell is going on. YouTube is giving them some transparency whether they want it or not.

I’m not sure if the ContentID really gives them much more sales.

Here’s what I’m saying instead: Go buy the Halo: Reach Original Soundtrack in iTunes. Seriously. The game is incredible and the soundtrack is nothing short of amazing. And it’s not copy-protected either — I like that. Can play it in Windows, OS X and Linux with no problems. (Can’t play it on Xbox 360 though. What’s up with that?)

…If I did this right, someone just sent US$16 toward Apple. The money gets nicely split up, and I’m sure Microsoft sees a huge bunch of money coming their way. Just because I mentioned the thing in the blog, and I personally endorsed this awesome product.

OK, it’s more likely that my puffing won’t increase any sales. But that’s all academic, because ContentID stuff has even less potential to puff any sales.

You can go watch the YouTube video again. Maybe there are ads. I wouldn’t know - I use Adblock Plus. But if you somehow manage to not use an adblocker in this supremely annoying age of ours, you may get a glimpse of the most mystical and rarely seen of the beasts of all: a YouTube ad. And last I checked, ad impressions aren’t terribly profitable.

The video has been seen 13 times. Most of them are probably me, with my Adblocked-to-hell setup. So maybe someone saw an ad.

That’s two whole millipennies going to Microsoft’s way. That’s what Bungie/343i gets for letting Microsoft outsource music distribution to Sumthing Else, and Sumthing Else for outsourcing their music distribution to three different companies at the same time.

I’m sure they all keep accounting very accurate.

Seriously. Go buy the Reach soundtrack now. It’s bloody amazing. I’m sure 343i will get more motivated to make Halo 4 a great game when they see that people are actually buying Halo: Reach soundtrack and they’re racking up some profit from it.

I’ve done all I can to promote that video of mine. 13 views. 343i sees fractions of fractions of monetary units that may or may not be even real. I’m sure they think they’re getting really motivated from that.

Wonder what would happen if, instead of displaying ads, YouTube would instead put out a widget that would let people to purchase the matched music tracks from online music stores of their choice? Nah, the music labels wouldn’t be happy with that — that would no longer let them sink money in the infrastructure. Duh.